Citation Nr: 0003454
Decision Date: 02/10/00 Archive Date: 02/15/00
DOCKET NO. 94-19 425 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to an increased evaluation for a status post torn
ligament of the right knee, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Wright, Counsel
INTRODUCTION
The veteran had active service from December 1968 to December
1972, and from May 1975 to November 1988. This appeal arises
from a March 1992 rating decision of the Manchester, New
Hampshire, Regional Office (RO) which denied an increased
evaluation for the veteran's service connected right knee
disability. The RO confirmed and continued the evaluation of
this disorder at 10 percent disabling. This determination
was appealed by the veteran. In a rating decision of
December 1996, the RO granted an increased evaluation for the
right knee disorder to 20 percent disabling. The veteran
continued his appeal.
This case was remanded by the Board in June 1997 for
development of the medical evidence. It has now returned for
final appellate consideration.
FINDINGS OF FACT
1. All evidence required for an equitable decision of the
issue on appeal has been obtained.
2. The veteran's service-connected right knee disability is
characterized by mild instability, mild quadriceps atrophy,
chronic pain, weakness, fatigability, and significant
limitation of motion during flare-ups without evidence of
degenerative changes.
CONCLUSION OF LAW
An increased evaluation to 40 percent disabling, but not
more, is warranted for the veteran's status post torn
ligament of the right knee. 38 U.S.C.A. §§ 1155, 5107(a)
(West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.20, 4.40, 4.45,
4.68, 4.71, Code 5003, 5162, 5256, 5257, 5258, 5259, 5260,
5261, 5262, 5263 (1999). See also VAOPGCPREC 23-97.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background.
By rating decision of June 1989, the RO granted service
connection for the veteran's status post torn meniscus of the
right knee. This disability was evaluated under the U. S.
Department of Veterans Affairs (VA) Schedule for Rating
Disabilities, 38 C.F.R. Part 4, Diagnostic Code (Code) 5257
as noncompensable. The award was made effective from
November 1988. In a rating decision of July 1989, the RO
increased the evaluation of the veteran's right knee
disability to 10 percent disabling from November 1988. This
rating was confirmed and continued in a rating decision of
November 1989 and a Board decision of October 1990.
In December 1991, the veteran filed a claim for an increase
in the evaluation of his right knee disability. VA treatment
records dated from December 1988 to November 1991 were
incorporated into the claims file in January 1992. These
records predominately noted treatment for hearing,
psychiatric, right ankle, and headache complaints. An
undated prosthetic clinic record noted the veteran's
complaints of instability in the right knee. He was examined
and fitted for a knee brace. On examination, no ligamentous
instability was found. In outpatient records of June 1990,
July 1991, and October 1991, the veteran complained of right
knee and ankle pain. It was noted that he continued to use a
right knee brace. A private orthopedic examination of
December 1991 reported the status of disorders associated
with the veteran's left lower extremity. It was mentioned
that the veteran had an old right knee injury.
By rating decision of March 1992, the RO determined that
based on the medical evidence the veteran's right knee injury
was mild in nature. The 10 percent evaluation for this
disorder was confirmed and continued. The veteran appealed
this evaluation.
At his hearing on appeal in July 1992, the veteran testified
that since his retirement from the military he had been
treated by the VA and by a private physician for an on-the-
job injury covered under Workers' Compensation. He asserted
that he had continually worn a brace on his right knee in
recent years. The veteran claimed that he had started to
have instability in the right knee and the VA modified his
brace in order to prevent this from happening. He alleged
that the nature of his right knee disorder prohibited
surgical intervention to correct it. If the veteran did not
use a brace on his knee, he was forced to use crutches to
ambulate. The veteran contended that because he was forced
to continually wear a brace on his right knee that this
disorder could not be considered slight in nature. He
asserted that he experienced pain and swelling in the right
knee and was forced to take prescription medication to
alleviate these symptoms. The veteran claimed that his right
knee had a tendency to pop during flexion of the joint. He
also alleged that it became weak and, at times, would feel
like it was going to collapse.
A VA orthopedic examination was provided to the veteran in
August 1992. He complained of instability and pain in his
right knee. It was noted by the examiner that the veteran
used a Townsend brace on this knee to maintain stability. He
asserted that there was a popping and clicking in the knee
joint during ambulation. The veteran denied any problems
with prolonged standing or sitting, but did complain of pain
when arising or walking upstairs. On examination, the
veteran walked with a slight limp on the right side. There
was no evidence of swelling, erythema, or warmth. His right
thigh measured 16 1/2 inches and his left measured 17 inches.
His right calf measured 13 3/4 inches and his left was 14
inches. Leg lengths were equal and the examiner commented
that there was no obvious deformity with the right leg.
There was no tenderness about the right knee joint and all
testing of this joint was negative. The right knee was noted
to be stable to varus/valgus stress and anterior-posterior
drawer testing. An X-ray of the right knee noted no joint
space narrowing on non-weight bearing. The radiological
study failed to reveal any evidence of joint swelling. The
assessment was internal derangement of the right knee status
post medial collateral tear.
In his substantive appeal (VA Form 9) submitted in May 1993,
the veteran complained that the VA examination of August 1992
had been inadequate. He asserted that this examination had
been cursory and lasted only five minutes. The veteran also
reported that the examiner had failed to get up-to-date X-
rays of his right knee joint. A letter was received from the
veteran in July 1993. He reported that his VA health
providers had recently issued him a wheelchair to enhance his
mobility. The veteran again contended that the VA
examination of August 1992 had not been thorough in
evaluating his right knee disability.
At his Board hearing in March 1994, the veteran testified
that he used a Townsend brace with a kneecap modification,
Canadian crutches, and a wheelchair to facilitate his
problems with prolonged walking. If he did not use his right
knee brace, the joint would have severe swelling and
instability. It was asserted by the veteran that the
swelling in his right knee had increased in recent years.
The veteran alleged that his right knee would become swollen
at the end of each day and he self-treated it with a Jacuzzi
and applied heat. He claimed that the military had
determined that his right knee disorder was such that it was
inoperable and he had never had surgery performed on this
joint. The pain level in his right knee varied from day to
day and depended on his level of activity. He asserted that
the use of his knee brace lessened his knee pain. It was
acknowledged by the veteran that his physicians had wanted
him to go for periods of time without the use of the brace,
but he did not do so because he wanted to have the functional
use of his knee as long as possible. He claimed that he
could only walk from five to ten feet without using the knee
brace. It was acknowledged by the veteran that since leaving
the military the only treatment he had received for his right
knee disability had been from the VA. The veteran testified
that he worked as a teacher and that his right knee
disability caused him to lose approximately one day a week of
work. He reported that he worked two to three days a week as
a teacher in addition to attending his vocational
rehabilitation courses.
A VA orthopedic examination was afforded the veteran in March
1996. It was noted that the veteran wore a brace on his
right knee. He claimed that when he did not wear a brace his
right knee would swell and become irritated. The veteran
denied any actual buckling or locking, but did complain of
some unsteadiness. Range of motion studies revealed that the
right knee had full extension to 125 degrees of flexion.
There was no joint effusion or neurovascular deficit.
However, the examiner did report mild anterior laxity in the
right knee and quadriceps atrophy. The right knee X-ray
noted medial distal femur epicondylitis which the
radiologists opined did not usually cause knee instability.
It was determined that there was no evidence of a right knee
joint abnormality. The diagnosis was chronic instability of
the right knee.
A private orthopedic examination was obtained by the VA in
August 1996. It was noted that the veteran used a brace on
his right knee. He complained of persistent pain in his
right knee that was aggravated by any standing or walking.
The veteran denied any weakness or numbness in his legs. On
examination, the veteran's leg lengths were equal with good
pedal pulses. Range of motion in the right knee was from
zero degree extension to 40 degrees flexion. There was no
instability or swelling in the right knee. However, there
was some tenderness over the medial knee and the right thigh
measured 1/2 inch less then the left. A radiological study of
the right knee revealed a calcified area at the adductor
tubercle, but otherwise the joint was found to be
unremarkable. The diagnoses included arthralgias of the
right knee of undetermined cause.
In December 1996, the RO issued a supplemental statement of
the case (SSOC) that informed the veteran that an increased
evaluation for his right knee disability had been granted to
20 percent disabling. The Board remanded this case in June
1997 for development of the medical evidence. By letter of
June 1997, the RO requested that the veteran inform it of the
names and addresses of the healthcare providers that had
treated his right knee disability in recent years. He was
notified that his failure to submit this type of evidence
could have an adverse effect on his claim for an increased
evaluation. In September 1997, the veteran provided this
information to the RO.
A VA orthopedic examination was given to the veteran in
September 1997. The veteran complained of chronic pain in
his right knee. It was noted that the veteran was employed
on a full-time basis. On examination, range of motion in the
right knee was from 20 degrees from full extension to 90
degrees flexion. It was reported by the examiner that the
veteran experienced pain on the extremes of motion with
crepitation noted during motion. There was 1 1/2 inch of
atrophy in the right quadriceps. There was no joint
effusion, neurovascular deficit, or instability found on
examination. The diagnosis was chronic degenerative joint
disease in the right knee. It was opined by the examiner
that:
The claimant does demonstrate painful
motion with some weakness and
fatigability of the right knee joint.
These [findings] are supported by
objective evidence and are consistent
with the history and pathology of the
disability. These do limit functional
ability during flare-ups and when the
joint is used repeatedly over a period of
time by 20 %.
In October 1997, the RO requested that the U. S. Air Force
facilities identified by the veteran forward copies of his
medical records. A response was received in November 1997
from the U. S. Air Force that these records were no longer in
its possession and were believed to be in the possession of
the veteran.
VA medical records dated from March 1989 to August 1994 were
associated with the claims file in November 1997. These
records noted treatment for headaches, psychiatric problems,
dental complaints, a hearing disorder, and various orthopedic
complaints. The veteran received an orthopedic consultation
in August 1993. It was noted that the veteran wore a
Townsend brace on his right knee and occasionally walked with
the use of Australian walkers. He complained that his right
knee was very unstable. On examination, range of motion in
the right knee was from zero to 100 degrees. There was no
valgus or varus instability. However, Lachman, McMurray,
patellar grind, and anterior drawer testing were all
positive. There was no swelling or effusion in the right
knee joint, but the examiner did find joint line tenderness.
The assessment was right knee ACL, medial, and lateral
meniscal tears.
In January 1998, the veteran's private medical records dated
from November 1994 to September 1996 were received by the RO.
These records predominately noted treatment of the veteran's
left lower extremity and low back complaints. An outpatient
record of November 1994 noted that the veteran had a right
knee disability that was nicely controlled by a specialized
brace. It was noted that the veteran worked as a teacher and
spent a significant amount of time teaching from a
wheelchair. On examination, it was reported that "there are
no obvious palpable abnormalities of the lower extremities."
The assessment was chronic orthopedic injuries and
disabilities that were stable and well-controlled. A letter
from a private physician dated in February 1995 noted that
the veteran's primary complaints were pain and stiffness in
his back and lower left extremity. Physical examination
revealed that the right knee had relatively good movement
with no effusion. The impression was post-traumatic
degenerative arthritis, but the examiner failed to identify
which joints were involved in this finding.
The RO contacted the veteran by letter in January 1998 and
informed him that it had been unable to get his post-service
medical records from the U. S. Air Force. It requested that
the veteran directly obtain these records and submit them to
the VA. He was informed that his failure to comply with this
request could have an adverse effect on his claim.
Another VA orthopedic examination was provided to the veteran
in May 1999. The veteran acknowledged that he was able to
work, but asserted that his right knee problems limited his
activity. He complained of continual pain in his right knee
that was worse when he was fatigued. The veteran asserted
that he had some weakness, stiffness, swelling, heat, and
redness in the right knee. It was alleged by the veteran
that his right knee experienced occasional locking,
fatigability, and lack of endurance. He claimed that his
right knee would give way every two to three months. The
veteran also complained of flare-ups of severe pain that
occurred once a month and lasted two to three days. These
flare-ups were precipitated by cold weather and activity. He
reported that his right knee disorder was treated by a brace,
prescribed medication, whirlpool bath, and, at times, the use
of a cane. The veteran denied any history of dislocation,
subluxation, or definite inflammatory arthritis. On
examination, the veteran's gait was antalgic. When he walked
with the use of a knee brace, the veteran listed to the right
side with each step and experienced some pain in the right
knee. There was 1/2 inch atrophy in the right thigh. No
lateral or posterior instability was found in the right knee.
Range of motion in the right knee was flexion to 120 degrees
with pain starting at 110 degrees. Regarding extension of
the right knee, the examiner noted that this joint was fixed
at 15 degrees flexion. It was opined by the examiner that
there was definite weakness of flexion and extension in the
right knee. Deep tendon reflexes were equal and active. The
diagnosis was medial epicondylitis of the right knee with
limitation of motion, painful motion, and weakness. Attached
to this examination report was a radiological study taken of
the right knee in November 1998. This X-ray noted medial
epicondylitis. It was opined by the examiner that:
Ordinary activity such as doing his work
is possible as long as he wears his right
knee brace. The disability impairs the
functioning in that he is unable to walk
a considerable distance or do sports.
Also, there is some limitation of
mobility of the right knee. As
described, the right knee exhibits
weakened movement and excessive
fatigability but no incoordination. An
estimate of the additional range of
motion lost is approximately 20 percent.
There is limitation of flexion and the
right knee is fixed in flexion at 15
degrees. The above findings could
significantly limit functional ability
during flare ups or when the right knee
is used repeatedly over a period of time,
this would be an estimate only and would
be approximately 20 %.
The RO issued a SSOC in May 1999 that informed the veteran
that his right knee disability did not warrant an evaluation
in excess of 20 percent disabling based on the schedular
criteria. In a brief submitted directly to the Board in
September 1999, the veteran's representative argued that the
veteran was entitled to separate evaluations for his right
knee disability based on the VA's General Counsel opinion,
VAOPGCPREC 23-97.
II. Applicable Criteria.
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings, which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999).
Separate diagnostic codes identify the various disabilities.
The VA has a duty to acknowledge and consider all regulations
which are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases
for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). These regulations include, but are not limited to,
38 C.F.R. §§ 4.1 and 4.2 (1999). Also, 38 C.F.R. § 4.10
(1999) provides that, in cases of functional impairment,
evaluations must be based upon lack of usefulness of the
affected part or systems, and medical examiners must furnish,
in addition to the etiological, anatomical, pathological,
laboratory and prognostic data required for ordinary medical
classification, full description of the effects of the
disability upon the person's ordinary activity. These
requirements for evaluation of the complete medical history
of the claimant's condition operate to protect claimants
against adverse decisions based upon a single, incomplete, or
inaccurate report, and to enable the VA to make a more
precise evaluation of the level of the disability and of any
changes in the condition. Schafrath, 1 Vet. App. at 594.
In addition, 38 C.F.R. § 4.40 (1999) requires consideration
of functional disability due to pain and weakness. As
regards the joints, 38 C.F.R. § 4.45 (1999) notes that the
factors of disability reside in reductions of their normal
excursion of movements in different planes. The
considerations include more or less movement than normal,
weakened movement, excess fatigability, incoordination,
impaired ability to execute skilled movements smoothly, pain
on movement, swelling, deformity or atrophy of disuse,
instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight-bearing.
With any form of arthritis, painful motion is an important
factor of the rated disability and should be carefully noted.
The intent of the schedule is to recognize painful motion
with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or mal-aligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. Crepitation either in the soft tissues
such as the tendons or ligaments, or crepitation within the
joint structures should be noted carefully as points of
contact which are diseased. 38 C.F.R. § 4.59 (1999).
The evaluation of the same disability or manifestations under
different diagnoses is to be avoided. 38 C.F.R. § 4.14
(1999). Rather, the veteran's disability will be rated under
the diagnostic code which allows the highest possible
evaluation for the clinical findings shown on objective
examination. However, 38 C.F.R. § 4.14 does not prevent
separate evaluations for the same anatomic area under
different diagnostic codes that evaluate different
symptomatology. Estaban v. Brown, 6 Vet. App. 259 (1994).
Based upon the principle set forth in Estaban, the VA General
Counsel (GC) held that a knee disability may receive separate
ratings under diagnostic codes evaluating instability (Code
5257, 5262, and 5263) and those evaluating range of motion
(Codes 5003, 5256, 5260, and 5261). See VAOPGCPREC 23-97.
The applicable schedular criteria are as follows:
Code 5003. Arthritis, degenerative
(hypertrophic or osteoarthritis):
Degenerative arthritis established by X-
ray findings will be rated on the basis
of limitation of motion under the
appropriate diagnostic codes for the
specific joint or joints involved. When
however, the limitation of motion of the
specific joint or joints involved is
noncompensable under the appropriate
diagnostic codes, a rating of 10 percent
is for application for each such major
joint or group of minor joints affected
by limitation of motion, to be combined,
not added under diagnostic Code 5003.
Limitation of motion must be objectively
confirmed by findings such as swelling,
muscle spasm, or satisfactory evidence of
painful motion. In the absence of
limitation of motion, rate as below:
>With X-ray evidence of involvement of 2
or more major joints or 2 or more minor
joint groups, with occasional
incapacitating exacerbations; rate as 20
percent disabling.
>With X-ray evidence of involvement of 2
or more major joints or 2 or more minor
joint groups; rate as 10 percent
disabling.
* Note (1): The percentage ratings based
on X-ray findings, above, will not be
combined with ratings based on limitation
of motion.
Code 5256. Knee, ankylosis of:
>Favorable angle in full extension, or in
slight flexion between 0° and 10°; rate
as 30 percent disabling.
Code 5257. Knee, other impairment of:
>Recurrent subluxation or lateral
instability:
Severe; rate as 30 percent
disabling.
Moderate; rate as 20 percent
disabling.
Slight; rate as 10 percent
disabling.
Code 5258. Cartilage, semilunar,
dislocated, with frequent episodes of
"locking," pain, and effusion into the
joint; rate as 20 percent disabling.
Code 5259. Cartilage, semilunar, removal
of, symptomatic; rate as 10 percent
disabling.
Code 5260. Leg, limitation of flexion
of:
>Flexion limited to 15°; rate as 30
percent disabling.
>Flexion limited to 30°; rate as 20
percent disabling.
>Flexion limited to 45°; rate as 10
percent disabling.
>Flexion limited to 60°; rate as
noncompensable.
Code 5261. Leg, limitation of extension
of:
>Extension limited to 45°; rate as 50
percent disabling.
>Extension limited to 30°; rate as 40
percent disabling.
>Extension limited to 20°; rate as 30
percent disabling.
>Extension limited to 15°; rate as 20
percent disabling.
>Extension limited to 10°; rate as 10
percent disabling.
>Extension limited to 5°; rate as
noncompensable.
Code 5262. Tibia and fibula, impairment
of:
>Nonunion of, with loose motion,
requiring brace; rate as 40 percent
disabling.
>Malunion of:
With marked knee or ankle
disability; rate as 30 percent disabling.
Code 5263. Genu recurvatum (acquired,
traumatic, with weakness and insecurity
in weight-bearing objectively
demonstrated) rate as 10 percent
disabling.
38 C.F.R. Part 4 (1999).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
38 C.F.R. § 4.20 (1999). The combined rating for
disabilities of an extremity shall not exceed the rating for
the amputation at the elective level, were amputation to be
performed. 38 C.F.R. § 4.68 (1999).
Normal range of motion in a knee joint is from 0 degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II (1999).
III. Analysis.
The first responsibility of a claimant is to present a well-
grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim
for an increased evaluation is well-grounded if the claimant
asserts that a disorder for which service connection has been
granted has worsened. Proscelle v. Derwinski, 2 Vet. App.
629, 632 (1992). In this case, the veteran asserted that his
right knee disability is worse than evaluated, and he has
thus stated a well-grounded claim.
In addition, the undersigned finds that the VA has conducted
all development required in this case to comport with the
requirements of 38 U.S.C.A. § 5107(a). The Board's remand of
June 1997 required that the RO request information from the
veteran on his healthcare providers and conduct a thorough
compensation examination based on the veteran's entire
medical history. These actions were carried out by the RO
and do not require any further development. See Stegall v.
West, 11 Vet. App. 268 (1998). While the veteran identified
specific U. S. Air Force hospitals as providing treatment for
his right knee complaints, the only response received from
these hospitals noted that the treatment records were in the
veteran's possession. By letter of January 1998, the RO
informed the veteran of this response and requested that he
submit this evidence. There was no response to this request.
The undersigned finds that the RO has fully complied with any
duty to assist under 38 U.S.C.A. § 5107(a) regarding the
recovery of these U. S. Air Force medical records. It is
also found that the veteran has been adequately informed of
the requirements for increased evaluation of his right knee
disability in the statement of the case and SSOC's of recent
years and the Board's remand of June 1997. As the veteran
has been provided with the opportunity to present evidence
and arguments on his behalf and availed himself of those
opportunities, appellate review is appropriate at this time.
See Robinette v. Brown, 8 Vet. App. 65 (1995); Bernard v.
Brown, 4 Vet. App. 384 (1993).
In accordance with the GC's opinion noted above, a veteran
who evidences symptoms of restricted range of motion and
instability in a knee joint with a service-connected
disability can receive separate evaluations on the same
joint. In order to received an additional evaluation for
limitation of motion in a service-connected knee disorder,
there must be objective evidence of arthritis or degenerative
changes in the joint. See VAOPGCPREC 23-97. The medical
evidence in the current case has been inconsistent regarding
degenerative changes in the right knee joint. The private
examiner of February 1995 diagnosed traumatic degenerative
arthritis, but failed to identify which joints were involved.
An examiner of September 1997 diagnosed degenerative joint
disease in the right knee, but there are no radiological
studies of record that have specifically identified
degenerative joint disease in this joint. In fact, many of
the right knee X-rays have found the joint space normal.
However, X-rays of March 1996 and November 1998 noted
epicondylitis (inflammation of adjoining tissues) on the
rounded projection of the femur bone. Based on these
radiological studies, there is no objective evidence that the
veteran currently suffers with degenerative changes in his
knee joint at the current time. Based on this objective
evidence, the GC's opinion in VAOPGCPREC 23-97 would not be
applicable to the current appeal and the residuals of the
veteran's status post torn ligament must be evaluated under
the single diagnostic code that provides the highest
evaluation. Thus, there was no requirement for the RO to
evaluate this claim under VAOPGCPREC 23-97 and a remand for
such consideration is not appropriate at this time.
Concerning the evaluation of instability in the veteran's
right knee, he is currently evaluated as 20 percent disabled
for his right knee instability under Code 5257. Any
evaluation under Code 5262 requires malunion or nonunion of
the tibia and fibula. There is no evidence of record that
the veteran's service-connected knee disability has resulted
in such a problem and, thus, an evaluation under Code 5262 is
not warranted. It is noted that the veteran's right knee has
never been found to evidence genu recurvatum and therefore is
not entitled to an evaluation under Code 5263.
Evaluating the instability in the veteran's right knee, the
medical evidence is inconsistent on the very existence of
such instability. While the veteran has consistently claimed
to have instability in his right knee when not using a brace,
examiners in August 1992, August 1996, September 1997, and
May 1999 have not found evidence of such instability.
However, objective examination in March 1996 and August 1993
did note positive findings for instability. The March 1996
examiner defined this instability as mild in nature.
Reviewing this evidence in a light most favorable to the
veteran, there is objective evidence that he currently has
mild instability in his right knee. While the veteran has
claimed that his knee disorders interfered with his
employment, he acknowledged in April 1999 that he was
currently employed. He also reported that he is forced to
use, on occasion, crutches and even a wheelchair. However,
the objective evidence indicates that the use of these
appliances is more the result of his multiple nonservice-
connected orthopedic disorders rather than due to his right
knee. In fact, the veteran has acknowledged at his hearings
in July 1992 and March 1994 that his right knee was stable
while using his knee brace. This evidence indicates that an
increased evaluation for the instability in his knee is not
warranted under Code 5257, as the evaluation of moderate
instability appears more than appropriate. While the
examiners of September 1997 and May 1999 opined that flare-
ups of the veteran's right knee disorder would result in a 20
percent increase in symptomatology, these findings do not
appear to be associated with any instability in the right
knee. This is apparent based on the fact that both examiners
failed to find any instability in this joint during
examination and appear to be referring to loss of motion in
the joint. Under these circumstances, an increased
evaluation for instability in the right knee is not
warranted.
Turning to the veteran's restricted motion in his right knee,
as there are no degenerative changes in the right knee, a
compensable evaluation is not warranted under Code 5003. As
the evidence of record does not indicate dislocation or
removal of knee cartilage, a compensable evaluation under
Codes 5258 and 5259 is also not warranted. The veteran has
claimed that any type of strenuous activity will exacerbate
his pain resulting in difficulties with everyday activities.
He has never claimed that this pain has resulted in fixation
or ankylosis of his knee joint. The range of motion in the
right knee was measured at its worst on the examination of
September 1997. This examination found right knee motion
from 20 degrees to 90 degrees with a 20 percent loss during
flare-ups of symptomatology. It appears that any limitation
of motion due to pain, fatigability, or weakness was included
in this estimate. Therefore, the objective medical opinion
indicates that range of motion would be limited to
approximately 30 degrees extension to 80 degrees flexion.
This estimate is consistent with the May 1999 examiner's
range of motion findings of extension limited to 15 degrees
and flexion limited to 110 degrees with a 20 percent decrease
during flare-ups. Under Code 5260, limitation of flexion at
80 degrees would not entitle the veteran to a compensable
evaluation. However, limitation of extension at 30 degrees
would entitle the veteran to an evaluation of 40 percent
disabling under Code 5261.
Based on the above analysis, the veteran's right knee
disability is characterized by mild instability, mild
quadricep atrophy, chronic pain, weakness, fatigability, and
significant limitation of motion during flare-ups without
evidence of degenerative changes. Resolving reasonable doubt
in the veteran's favor, this degree of symptomatology more
nearly approximates the criteria for a 40 percent evaluation
under Code 5261. 38 C.F.R. § 4.7 (1999). Therefore, the
evidence supports the grant of an increased evaluation for
the veteran's service-connected right knee disability.
ORDER
An increased evaluation to 40 percent disabling, but not
more, for status post torn ligament of the right knee is
granted; subject to the applicable criteria pertaining to the
payment of veterans' benefits.
D. C. Spickler
Member, Board of Veterans' Appeals